August 17, 2006

The American Civil Liberties Union filed the lawsuit on behalf of journalists, scholars and lawyers who say the program has made it difficult for them to do their jobs. They believe many of their overseas contacts are likely targets of the program, which involves secretly taping conversations between people in the U.S. and people in other countries.

We'll see how well that holds up.

UPDATE: Here's the PDF of the opinion. I note that the court dismissed the claim relating to data-mining, based on the state secrets privilege. It is only the warrantless interception of international phone calls and email that the court finds unconstitutional.

39 comments:

LOS ANGELES — A nuclear explosion at the Port of Long Beach could kill 60,000 people immediately, expose 150,000 more to hazardous radiation and cause 10 times the economic loss of the Sept. 11, 2001 terrorist attacks, according to a new Rand Corp. study.

Whew! Even in such times as these, with innocent civilians under attack across the globe, we cannot endanger a journalist's right of access to anonymous sources aimed at undermining the hegemony of Amerika. If we do, the terrorists win. Sure, we'll be dead, but it's the principle that counts.

No mention of the legal argument presented, no link to the decision or the proceedings, and thus no way to get even the slightest idea of the merits of the case.

(Though I'm very, very dubious on the basis of what's presented. NSA wiretapping of foreign calls violates freedom of speech? That must be an ... interesting argument. I can only imagine it being effective if the mere fact of said wiretapping was somehow equivalent to a restraint on speech, but I don't see how that can plausibly be held.

At least the privacy argument is not prima facie ludicrous, though my not-a-lawyer understanding of the jurisprudence doesn't make me think that'll stand review either.)

This decision seems even more ridiculous coming a week after we foiled the terrorist attack on U.S. airliners in Britain that would have killed 3000 civilians. In that case many of the suspects were British citizens communicating with Pakistan.....

This is just a rehash of the Ned Lamont vs. Lieberman campaign. This will be the 2006 campaign. Do you want Lamont and the ACLU who are soft on terrorism or do you want Lieberman and agressive counter terrorism.

This on top of Hamdon which said the Geneva Convention applies to Terrorists. How absurd.

It doesn't make any difference. First, what ever the outcome it was going to be appealed to the Supreme Court. Second, the Bush Administration already agreed with Arlan Spectre and others in Congress to alter the program.

This is classic judicial activism. Treating the GWOT as a simple law enforcement matter. Those that thought Monica's bj's was Clinton's impeachment reasons, should take note of how Jones v Clinton is mentioned for giving standing to the plaintiffs. Such flowery language "There are no hereditary Kings in America and no powers not created by the Constitution." " The Supreme Court in the Keith , as well as the Hamdi cases, has attempted to offer helpful solutions to the delay problem, all to no avail." "Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution. " Then she cites the biggest judicial activist " As Justice Warren wrote in U.S. v. Robel, 389 U.S. 258 (1967): Implicit in the term ‘national defense’ is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties . . . which makes the defense of the Nation worthwhile. Id. at 264.

My heart races with joy. The moonbats will have days to cite her words, reveling in Bush bashing. This is Taymas in August. Hurry terrrosits, get those calls in before an Appellate Court stays this order.

I want to give a special thanks to the New York Times for leaking this program, allowing these injured parties to seek relief. Didn't Keller tell us that terrorists already knew about eavesdropping, yet the plaintiffs convinced the Judge that after this was reveal their terrorist friends wouldn't talk to them anymore, creating such a burden.

MM, the problem is that a FISA warrant requires some level of probable cause against a person. what if we capture Osama's laptop and get his address book and all we have are names and numbers? No evidence against anybody in the book.

second point, supposed Osama's cell phone calls a number in Pakistan and 20 seconds later that number calls Paris, London and NYC, do you want to listen in? or should we just file the number away and try to build a case for a warrant in a few months.

this stuff is happening in real time and we can't afford to wait months for a FISA warrant

I don't think most of us object to the president having to obey the law. It's the lunacy of claiming the law requires a warrant to intercept enemy communications in wartime, and a judge upholding that kind of idiocy.

MadisonMan,Only a few people truly know what this program entails, this Judge doesn't know either. Like Scalia said, since when are judges experts in national security matters. I will not allow my security to rest with the whim of some judge. I'd rather NSA fellow citizens do what ever is necessary to intercept intelligence, and have faith in the agency's transparency, that if an Administration were to abuse the eavesdropping for political reasons, they would have the courage to bring that to light. FISA was written because the John Kerry's of the world thought it was wrong for the CIA to inform the FBI that the Soviet Union was financing the civil unrest in this country. They never considered communism bad, and it is clear they don't take the terrorist threat seriously.

Worse than the fact that this judge was a Carter appointee - she also apparently was the judge who tried to take one of the U. Mich. affirmative action cases away from a colleage who was felt might rule the wrong way (which he apparently did). He had been assigned the case in a blind draw, and as chief judge, she tried to take it away. However, he made a big stink about it, and she ultimately backed down.

If a United States citizen receives a call from someone in another country during the middle of the war, no warrant should be required. The President has the sole authority to prosecute the war including anyone engaged in the war that may be a citizen of the United States.

Obviously this judge does not think we are at war.... To her islamic fascism is just a term made up by greedy republicans trying to scare americans.

DrillSgt, it was my understanding that FISA warrants can be obtained fairly easily, and even after the fact. In your example, the four calls could be monitored, and a warrant obtained later. If the warrant were denied, the call recordings -- or however they are stored -- would be destroyed. That's my understanding, at least.

In my view, unfettered Executive Branch power is not a good thing. If the Legislature thinks the Judiciary has done something stupid here, they should rewrite the law to streamline things.

What I've learned so far from this case is that the plaintiffs are harmed by surveillance and therefore had standing to sue... but I shouldn't worry about the security implications of halting the NSA program because warrants are so easy to get that surveillance can go on just the same.

I just skimmed the decision, but it seems quite shaky to me. Without even getting to the merits, the court's discussion of standing, if accepted, would broaden the notion of "injury in fact" quite a bit. No one knows whether any particular communication has been intercepted. And the court rejected the "state secrets" defense as to the NSA intercept program (but not the data mining program) because the court found that it was possible to adjudicate the claims based only on what the Gov't has officially disclosed about the NSA intercept program. Thus there will never be any discovery about whether any actual communications involving the plaintiffs were intercepted.

To find standing, the court initially addresses Laird v. Tatum, an old case where the SCOTUS had dismissed on standing grounds a challenged to the Army's domestic surveillance program. The SCOTUS held that there was no standing if the "injury in fact" claimed by plaintiffs was the chilling of the exercise of their First Amendment because of the very existence of the surveillance program "without more." Citing the "without more" qualifier, Judge Taylor finds that there is "more" here -- that the foreigners whom plaintiffs want to communicate with (without the inconvenience of going across the bridge to Canada, this case having been decided in Detroit) will refuse to talk to them if plaintiffs are in the US. Basically, the "more" is that in this case, both parties to the communications claim to have been "chilled," whereas in Laird it was just the plaintiffs. That distinction doesn't bowl me over.

The judge concludes that her standing ruling is supported by cases in other areas where standing has been found. She cites as instructive an environmental case where the plaintiffs said that they had stopped using a particular body of water because of the presence of pollutants. Second, she cites a case involving a church that claimed to have lost membership because the Gov't had planted listening devices in the church.

In the environmental case, the injury in fact stemmed from the fact that there were pollutants in the water that plaintiffs wanted to use. Their right to use the body of water seems to have been unquestioned. Thus, there was nothing speculative about whether these particular plaintiffs had suffered a concrete injury, distinct from any injury that the public as a whole might have suffered. Without knowing what international calls may have been subjected to surveillance, the plaintiffs in the NSA case are in a different position. The "church" case is even more remote, since there it was established that the church building had been bugged. Assuming that the bugging was illegal (that was part of the claim that the church was making on the merits), it seems clear that the church suffered a direct injury in fact that distinguished it from all others.

Standing cases are notoriously all over the lot, and their reasoning is often opaque, to say the least. So the issue is not a sure winner for the Gov't. But on a quick read, I think the court's standing analysis is open to serious question.

The merits of this NSA intercept program were dissected some months ago here, and on Volokh and other legal blogs, in great depth. Without getting into that morass again, the constitutional issues in this case don't strike me as the sort of subject on which an appellate court is likely to want to write a sweeping opinion. Perhaps a dismissal on narrow standing grounds will strike the appellate judges as a better way to resolve the case as it moves up the ladder.

Since this decision basically throws the whole issue back to the political branches, its implications are not all bad for the Bush Administration. When this was a political issue in the Spring, the Dems started to make a lot of noise, along the lines of this decision (including some of its more offensive rhetoric) to the effect that Bush is not a King, etc., and then quickly backed off. Remarkably, this decision consistently refers to the foreigners with whom the ACLU plaintiffs are seeking to communicate as people whom the Gov't has classified as terrorists or associates of terrorist organizations. Those are the "chilled" communications that, according to the court, the Administration cannot intercept.

I'd be very surprised if the Dems want to take that issue to the voters. Will this now be a predicate for Sen. Specter to reopen his hearings and perhaps force Dem senators to vote on a proposal to enact express legislative authorization for the NSA program? That might make for an interesting October session of the Senate.

Will this now be a predicate for Sen. Specter to reopen his hearings and perhaps force Dem senators to vote on a proposal to enact express legislative authorization for the NSA program? That might make for an interesting October session of the Senate.

I'd like to think this is what would happen. Given reasonable oversight, I'm not sure how a reasonable person could object to the program.

It looks like, in IV and V, she establishes that the program violated the Fourth Amendment because it did not comply with FISA. Yet in IX, she says the constitutionality of FISA is irrelevant, because the program violated the Constitution. As best I can tell, her refusal to consider the constitutionality of FISA renders the judgment on the Fourth Amendment without foundation.

Similarly, section VII entirely collapses if FISA is unconstitutional -- the "expressedstatutory policy of our Congress" hardly can be legally relevant if said opinion is illegal. How can the question of FISA's constitutionality therefore be irrelevant, when this part of the opinion relies upon FISA's constitutionality?

Now, the First Amendment case comes down to "The President of the United States . . . has undisputedly violated the Fourth in failing to procure judicial orders as requiredby FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well."

And finally, the effect of the AUMF on FISA is irrelevant if FISA wasn't binding in the first place.

Accordingly, to my best interpretation, the entire decision relies upon FISA -- and then says the constitutionality of FISA is irrelevant.

[I]t was my understanding that FISA warrants can be obtained fairly easily, and even after the fact. In your example, the four calls could be monitored, and a warrant obtained later. If the warrant were denied, the call recordings -- or however they are stored -- would be destroyed. That's my understanding, at least.

Madison Man, allow me to make a minor correction to your understanding. A warrant may be issued after surveillance has started, but the Attorney General has to certify before surveillance begins that probable cause and all the necessities for a warrant exist. In Drill Sgt's hypothetical, all the NSA has is a list of phone numbers. If FISA applies, NSA can't listen into any calls made to or from those numbers without first establishing probable cause. If all NSA has is the numbers, probable cause does not exist and no eavesdropping can take place.

With that minor correction, here's what those who argue that FISA should apply are saying: We capture a terrorist's laptop in Afghanistan and obtain a list of phone numbers. Many of these numbers may belong to people who have no relationship to terrorism. Others might lead to terrorists. If FISA's rules must be followed, we cannot listen into any calls made to or from those numbers until we have done the leg work to identify who owns each number and do a background check on each individual for evidence that would establish probable cause to believe a particular individual has ties to terrorism. That could take days of effort for each number on the list.

Of course, it's not clear (to me) that FISA does apply to our hypothetical. FISA, by it's terms, requires a warrant before we can listen in on the conversations of someone who is the target of surveillance. I'd argue that, until someone has been identified they cannot be targeted. That is, until NSA has picked someone out from the crowd and is focused in on that person as someone of particular interest, that person is not under surveillance and no warrant is needed. Under this approach to the law, NSA does not need a warrant until it selects a particular "someone" as a target for surveillance. If NSA selects someone based on what was heard while listening to unknown (or untargeted) individuals, it's likely NSA would also have the probable cause required to obtain a warrant.

MM said "DrillSgt, it was my understanding that FISA warrants can be obtained fairly easily, and even after the fact."

Presumably, this is based on the fact that most FISA warrants are issued, and very few are rejected. But otherwise, those who have had it their job to procure FISA warrants as part of their job tend to disagree with your suggestion. Rather, they have repeatedly stated that it takes on the order of a month or so to get all the paperwork together for one warrant.

As to the ability to get warrants on an emergency basis ("Emergency Orders"), the AG, who is the one who has to sign them (and it apparently can't be delegated - which is one of the proposed changes to FISA), has repeatedly said that this provision is almost useless, because the paperwork burden is no less - they just have 72 hours in which to put it all together, get it to him, have him approve it, and then get it to the FISA Court. Otherwise, they can't ever listen to whatever they intercepted, even if it is a collect call from OBL.

You can believe those who think that it should be easy, or you can believe those who have to do this for a living. My vote is with the later.

The problem is that when communications are intercepted in within the U.S., as they have to be here, due to the technology, then targeting is irrelevant, as is whether the person in the U.S. is here illegally.

I have discussed this at more length here, but the short answer is that interception within the U.S. moves the analysis from 50 USC 1801(f)(1) to (f)(2) and your analysis would be correct under (f)(1), but not the more relevant (f)(2).

You are correct, I forgot about the different rules based on where the collection of the data takes place. Of course, to the extent foreign jurisdictions have given NSA access to their switches, no warrants would be necessary until an individual was targeted. We don't know whether NSA has been granted such access. (We won't know until the NYT helpfully lists all the countries cooperating with the USA.)

Thanks for the feedback. And thanks for the good info on you blog. I enjoyed my visit.

Well, just finished the opinion, and I don't see it standing for very long. I have no doubt that there will be either an emergency stay by the Court of Appeals, or an emergency appeal.

In any case, the decision beggers belief. As noted, she doesn't even address whether FISA is Constitutional, avoiding the question because of her determination that the NSA program violates the 1st and 4th Amdt. But she never addresses the 200+ year history of Free Speech limitations during war for national security reasons, but rather blythly assumes that the 1st Amdt. guarantee thereof is absolute, when, of course, it is not. As for the 4th, she discusses home searches, but never really addresses the fact that the tapping is not being done in the homes, and that there has never been an expectation of privacy for international calls (esp. during a war).

Indeed, part of the absurdity is that the entire 1st Amdt. claim AND the claimed damages are based precisely on the lack of an expectation of privacy. So, you have the NYT telling us that international calls to/from terrorists are potentially tapped, and you have the President telling us that if you get a call from OBL, they want to know about it, and if that isn't a reasonable expectation of a lack of privacy, I don't know what is.

Needless to say, there apparently was no evidence provided that would suggest that any of the parties to the lawsuit ever had his calls tapped. Rather, the basis for her determination that harm had befallen them revolves around the fact that apparently they were worried that their calls might be tapped, and, thus, terrorists were afraid to call them.

It is clever, but too clever by half. I agree with the previous poster that at some point in the appeals process, it is highly likely (IMHO) that the case is dismissed on standing grounds, so that either the Circuit Court or the Supreme Court doesn't have to address the 1st and 4th Amdt. issues. Indeed, I suspect that the 1st Amdt. portion of the decision is the most troubling - as it would seemingly give a green light to disclosure of classified information.

If this judge was more judicial and less a base partisan hack, she would not have issued a permanent injunction, but rather would have stayed her own decision and order pending appeal. With national security at stake, she gives the benefit of the doubt to the enemy. But I am sure she sincerely, personally, hates George W. Bush, so all is forgiven.

The problem though with using foreign switches is that if you look at a map of fiber coming into this country, my estimate is that only about 1/4 of the traffic probably comes through ECHELON member countries (notably the U.K.) The rest comes through countries that are much less likely to give us access to their switches.

So, I have no doubt that the traffic coming in through the U.K., Australia, and New Zealand is most likely surveiled at the switches there. And we probably do the same for them. But it is the rest, the stuff coming in from France, Belgium, Africa, or across the Pacific (esp. from Hong Kong, etc.) that is much more problematic.

And being able to tap the other 3/4 of the incoming/outgoing calls from/to known or suspected terrorists that is (IMHO) most likely the reason for what appears to be electronic surveilance w/i the U.S. itself.

I think that Joe has hit on part of the absurdity of the decision. The possibility of imminent harm is far and away on the side of the government here, and if she is wrong (as I obviously believe she is), and if an appeals court doesn't stay the injunction, and if the Government obeys the injunction, then there is a real possibility that a warning of an impending attack may be missed, and, as a result, people may die. A lot of people. And she has to at least assume, for forms sake, that the government will obey the injunction.

You've a lot more information than I do (or want to have) about where all our data cables and switches are located. However, I wouldn't be surprised to learn that many countries, including France, are more cooperative with us in private than they let on in public. This potential is just one more reason the NYT's and the Wash. Post's revelations are so damaging to our security. If France, for example, will only cooperate on such matters in secret, we are less likely to get such cooperation every time one of our programs gets broadcast in the press.

The Justice Dept press release notes that the parties have agreed to an interim stay, pending a ruling by the District Court on the Gov't's motion for a stay pending appeal. Today the Justice Dept also filed its notice of appeal.

It's hard to imagine that a stay pending appeal will be an issue in this case. Unfortunately, the appeal will be heard in the first instance by the Sixth Circuit, a court that has been badly, and bitterly, divided on several hot button cases recently. This is quite likely to be another one. If the Sixth Circuit affirms, the chances for SCOTUS review would be quite high.

I'm not a FISA lawyer, but I am an ex SIGINT type(30 years ago with no current knowledge). I'll note that as I read the law, we can do anything to anybody's call as long as we take it off a satelite/fiber and download it to the UK signals locations rather than Ft Meade.

Agreeing with both of you and against MM, the hand-off from various processes would be done in real time, w/o human intervention. having to take a numbder and get a warrant before passing the tip to the collection tools, would make things unworkable.

Rather, they have repeatedly stated that it takes on the order of a month or so to get all the paperwork together for one warrant.

I have not done an exhaustive search, but what I have done on this has led me to only one article, in NRO, saying that the warrant paperwork takes a month. That's neither enough for me to dispute this, nor enough to accept it. Bruce, do you have other sources? Thanks.

Sorry, I don't. Since the original story broke, I have been involved in innumerable discussions about the NSA international and foreign communications surveilance program, and can't absolutely pin where I saw it. My guess is at volokh.com, because that is where the majority of the discussions were. My guess at a time frame is mid-winter to early spring.

What I do remember though is two or three people claiming to have worked as attorneys at the DoJ and had getting FISA warrants as part of their job function. They univerally claimed that it typically took between 4-6 weeks to get such a warrant.

The AG's statements about the problems with the Emergency Orders provision are a bit more recent - I think about April or May of this year. In a week or so, he made the statement at least three times that this problem was not useful because the amount of paperwork was not reduced, just the time to get it done compressed into less than 72 hours. My guess is that he was making the rounds, to make a point, and that is why I saw so many different versions of essentially the same thing in such a short time. (They were different interviews though - he would say something similar in each, just not identical).

Sorry, I can't nail it down further. I will keep my eyes open though and try to track it down.

With that mention of volokh.com, I should note that there are some 5 or 6 blog entries there already on the subject, all with comments, from the various Conspirators.

My general take on the blog entries and comments is that the general consensus is that the decision was badly written. It starts off ok when it talks about privilege, then gets weaker as it discusses standing. But by the time it gets to the 4th Amdt. claim, the judge is just throwing barely relevant cases in to the decision to flesh out her decision, without taking the time to tie things together.

So, for example, in the 4th Amdt. portion, she talks about the roots of the Amdt. 200+ years ago, then some mid 20th century precedents about electronic within a house, but never bothers to explain why an amendment whose wording would limit it to state intrusions into a house would apply to electronic communications intercepted a thousand or so miles away from the plaintiffs' houses. It most likely can be done - she just didn't bother. And then she jumps into FISA to complete the 4th Amdt. resoning. I think a couple of the more articulate anti-NSA program bloggers have plausible arguments about what she was trying to do with tying FISA to the 4th Amdt., but you sure couldn't tell from the decision.

Judge Taylor's logic is a bit circular (see my blog entry on this). Nevertheless, she seemed to be suggesting that the reasonable expectation of privacy was based on FISA (but then wouldn't assess the Constitutionality of FISA since she had already determined that the NSA TSP was illegal under the 1st and 4th Amdts.)